Hartley

MEMORANDUM *

Petitioner David Hartley appeals the District Court’s order dismissing his federal habeas petition as untimely. 1 The District Court concluded that Hartley was not entitled to equitable tolling. We affirm.

“We review de novo a district court’s dismissal of a petition for writ of habeas corpus under [the Antiterrorism and Effective Death Penalty Act’s] statute of limitations.” Summers v. Schriro, 481 F.3d 710, 712 (9th Cir.2007). “The court’s decision to deny an evidentiary hearing is reviewed for abuse of discretion.” Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir.1999).

The Ninth Circuit has long held that the Antiterrorism and Effective Death Penalty Act may be equitably tolled. See, e.g., Harris v. Carter, 515 F.3d 1051 , 1055 n. 4 (9th Cir.2008); Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.2002); Calderon v. U.S. Dist. Ct. D.C.A. (Beeler), 128 F.3d 1283, 1287-89 (9th Cir.1997), overruled on other grounds by Calderon v. U.S. Dist. Ct. D.C.A. (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc).

Hartley urges the panel to use an “objective stop-clock analysis.” Although Judge McKeown, in her concurrence in Lott , did not join in the majority opinion because it “implie[d]…

dissenting:

David Hartley, a California state prisoner, filed his federal habeas petition five days after the one-year statute of limitations expired. Before filing his federal habeas petition, Hartley was required by the Antiterrorism and Effective Death Penalty Act to exhaust his state remedies. See 28 U.S.C. § 2244 (d). Hartley faced significant delays as he sought to exhaust his state remedies by filing his second and third state habeas petitions. The record indicates that Hartley’s criminal defense attorney neglected for sixty-two days to mail Hartley an important portion of Hart-leys legal file. Hartley was also denied full access to the prison law library during a prison lockdown that lasted seventy-five days. These delays totaled 137 days and left Hartley with only twenty-one days to prepare his federal habeas petition after his state habeas petitions had been denied and his state remedies exhausted. The majority disposition concludes that Hartley is not entitled to equitable tolling because there is no causal connection between Hartley being denied access to legal materials for 137 days and Hartley filing his federal habeas petition five days late. I disagree and…